BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
CITY
OF
JOLIET,
Petitioner,
V.
ILLINOIS
ENVIRONMENTAL
PROTECTION
AGENCY,
Respondent.
)
)
)
)
)
PCB
09-025
)
(Permit
Appeal-Water)
)
)
)
)
i4p
102009
°‘8oard
TO:
See
Attached
Service
List
NOTICE
OF
FILING
PLEASE
TAKE
NOTICE
that
on
March
10,
2009
we
filed
with
the
Office
of
the
Clerk
of
the
Pollution
Control
Board
an
original
and
ten
copies
of
the
attached
Joliet’s
Waiver
of
Statutory
Decision
Deadline
and
Petitioner’s
Motion
to
Strike
Certain
Statements
in
Respondent’s
Brief
That
Are
Not
Supported
By
Citations
To
The
Record,
a
copy
of
which
is
served
upon
you.
March
10, 2009
Roy
M.
Harsch,
Esq.
Yesenia
Villasenor-Rodriguez,
Esq.
Drinker
Biddle
&
Reath
LLP
191 North
Wacker
Drive,
Suite
3700
Chicago,
Illinois
60606
(312)
569-1441
(Direct
Dial)
(312)
569-3441
(Facsimile)
Respectfully
THE
B
One
of
Its
THIS
FILING
IS
BEING
SUBMITTED
ON
RECYCLED
PAPER
BEFORE
THE
ILLINOIS
POLLUTION
CONTROL
BOARD
CITY OF
JOLIET,
)
MAR
02009
Petitioner,
)
$jTE
OFjUj
v.
)
PCB
09-025
)
(Permit
Appeal-Water)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
)
Respondent.
)
JOLIET’S
WAIVER
OF
STATUTORY
DECISION
DEADLINE
Petitioner,
The
City
of
Joliet
(hereinafter,
“Joliet”),
by
and
through
its
attorneys,
Drinker
Biddle
&
Reath
LLP, pursuant
to
35
Iii.
Adm.
Code
§
10 1.308,
hereby
waives
the
statutory
decision
deadline
in
this
matter.
In
support
thereof,
Joliet
states
as
follows:
1.
On
October
17,
2008,
Joliet
timely
submitted
its
permit
appeal
to
the
Board
to
review
a
September
12,
2008
determination
of
the
Illinois
Environmental
Protection
Agency
(“IEPA”)
regarding
Joliet’s
application
of
sewage
sludge
from
its
wastewater
treatment
operations.
2.
A
hearing
was
held
in
this
matter
on
January
13,
2009
at
the
Village
of
Bolingbrook
board
room.
3.
Pursuant
to
Section
40(a)(2)
of
the
Act
(415
ILCS
5/40(a)(2)(2007)),
the
Board
has
120
days
after
the
date
on
which
it
received
the
petition
for
appeal
to
make
.a
decision.
However,
on
December
12,
2008,
Joliet
filed
a
petition
in
which
it
waived
the
decision
deadline
in
this
matter
until
April
3,
2009.
4.
Joliet
now
wishes
to
waive
the
Board’s
statutory
decision
deadline
in
this
matter
until
May
8,
2009.
THIS
FILING
SUBMITTED
ON
RECYCLED
PAPER
WHEREFORE,
Petitioner,
The
City
of
Joliet,
hereby
waives
the
statutory
decision
deadline
until
May
8,
2009.
Respectfully
submitted,
THE
CIT
OF
JOLIET
March
10,
2009
of
its
At
eys
Roy
M.
Harsch,
Esq.
Yesenia
Villasenor-Rodriguez,
Esq.
Drinker
Biddle
&
Reath
LLP
191
North
Wacker
Drive,
Suite
3700
Chicago,
Illinois
60606
(312)
569-1441
(Direct
Dial)
(3
12)
569-3441
(Facsimile)
THIS
FILING
SUBMITTED
ON
RECYCLED
PAPER
BEFORE
THE ILLINOIS
POLLUTION
CONTROL
BOA1FECEVED
LERK’S
OFFICE
MAR
I
U
CITY
OF
JOLIET,
)
29
STATE
OF
ILLINOIS
Petitioner,
)
OIIUt!0fl
Control
Board
)
v.
)
PCB
09-025
)
(Permit
Appeal-Water)
ILLINOIS
ENVIRONMENTAL
)
PROTECTION
AGENCY,
)
)
Respondent.
)
PETITIONER’S
MOTION
TO
STRIKE
CERTAIN
STATEMENTS
IN
RESPONDENT’S
REPLY
BRIEF
THAT
ARE NOT
SUPPORTED
BY
CITATIONS
TO
THE
RECORD
Petitioner,
City
of
Joliet
(“Petitioner”
or
“Joliet”),
by
and
through
its
attorneys,
Drinker
Biddle
&
Reath
LLP,
hereby
moves
to
strike
certain statements
in
the
Reply
Brief
of
Respondent
Illinois
Environmental
Protection
Agency
(“Respondent”
or
“IEPA”)
to
Petitioner’s
Post-
Hearing
Brief that
are
not
supported
by
citations
to
the
record,
are
plainly
wrong
and
are
in
contravention
of
matters
addressed
in
the
record.
In
support
thereof
Petitioner
states
as
follows:
INTRODUCTION
On
February
20,
2009,
Petitioner
timely
filed
its
Post-Hearing
Memorandum,
which
supported
its
appeal
of
IEPA’s
improper
denial
of
Joliet’s
request
to
modify
its
Land
Application
of
Sewage
Sludge
Permit
(the
“Permit”)
in
connection
with
Joliet’s
environmentally-beneficial
land application
of
bio-solids
as
fertilizer
on
farm
fields,
rather
than
disposal
of
this
material
in
landfills.
On
February
27,
2009,
Respondent
filed
a
Reply
to
Petitioner’s
Post-Hearing
Brief
(“Respondent’s
Reply
Brief’).
As
set
forth
herein,
there
are several
sets
of
statements
that
are
made
by
Respondent
in
its
Reply Brief
that
are
incorrect,
are
not
supported
by
citations
to
the
record,
and
which
should
not
be
given
weight
by
the
Board
in
its
consideration
of
this
permit
appeal.
Statements
that
are
not
THIS
FILING
IS
BEING
SUBMITTED
ON
RECYCLED
PAPER
supported
by
the record
should
not
be considered
by
the
Board,
and should
be
deemed
stricken,
so
that
a
reviewing
court
is
clear
as
to
what in
the
subject
brief was
considered
by
the
Board
and
what
was
not.
See,
e.g.,
Waste
Management,
Inc. v.
Illinois
Environmental
Protection
Agency,
PCB
84-45,
84-61,
84-68,
1984
WL
37589 (November
26, 1984).
In
order
to
allow
for
reasoned
consideration
of
its Motion
to
Strike,
and
to
allow
for
a
response
by
Respondent,
Petitioner
has concurrently
filed
a
Waiver
of
the
Statutory
Decision
Deadline,
that
enlarges
the time
for
the
Board
to
render
a
decision
on the
underlying
permit
appeal
until
May
8,
2009.
ARGUMENT
I.
Respondent’s
Unsupported
Speculation
That
Moving
Radium-containing
Soils
May
Increase
Concentration
Levels
Is
Unsupported
and
Should
Be
Deemed
Stricken
As
the
first
of
several
statements
lacking
support
in
the
record,
Respondent
asserts
that
soils containing
radium
that
are
removed
from
underneath
the
site
of
houses
to
be
built
slab-on-
grade
could
be
“consolidated
thus
increasing
the
concentrations
to
even
greater
leveIs.’
(Respondent’s
Reply
Brief,
at
2).
Aside
from
lacking
any
citations
to
the
record,
Respondent’s
argument
is
speculative,
and
devoid
of
any
sound
scientific
reasoning.
Simple
common
sense
tells
one that
simply
moving
soils
around
a
site
cannot
increase
the
concentrations
of
any
constituents
in
soils
on
a
volumetric
basis.
In
addition,
there
is
no
showing
by
Respondent
based
on
anything
in
the
record
that
such
an
issue
had
any
relation
to
the
denial
of
Joliet’s
requested
Permit
modification
by
IEPA.
As set
forth
in
Petitioner’s
Memorandum,
the
only
concern
at
issue
in
this
appeal
is
whether
it
was
proper
for
IEPA
to
deny
the
requested
Permit
modification
based
on
the
disagreement
between
IEPA
and
Joliet regarding
the
appropriateness
of
Joliet’s
assumption
that
radium-containing
soils
would
be
removed
from
underneath
slab-on-grade
residences,
thereby
-2-
reducing
or
eliminating
potential
exposure
to
radon
gas
due
to
the
radioactive
decay
of
radium
in
such
soils.
(Petitioner’s
Memorandum,
at
15-25).
The
red
herring
that
JEPA
offers
up,
namely
the
specious
concern
regarding
where
such removed
soils would
end up,
and
any
potential
to
thereby
increase
soil
concentrations
of
radium
elsewhere
(but
not
underneath
buildings),
is
not
relevant
and unsupported
in
the
record
in
any
case.
Thus,
for
these
reasons,
the
Board
should
strike
the
last two
sentences
of
the
subsection
of
Respondent’s
Reply
Brief
entitled
“Building
Codes,”
on
page
2
of
Respondent’s
Reply
Brief.
II.
The
Issue
With
Land
Application
of
Radium-containing
Sludge
Did
Not
First
Arise
When
Joliet
Began
Removing
Radium
As Part
of
Its
Water-Treatment
Efforts
In
the subsection
entitled
“Application
of
the
MOA”
of
Respondent’s
Reply
Brief
Respondent
makes
the
unsupported
assertion
that
the
issue
of
radium
levels
in
Joliet’s
bio-solids
first
arose
when the
city
made
the
decision
to
begin
removing
radium
from
its
drinking
water
and, therefore,
the
first
time
that
radium
limits
were
included
in
Petitioner’s
Permit
by
IEPA
was
in
2006.
(Respondent’s
Reply
Brief,
2-3). Respondent’s
argument
seems
designed
as
an
excuse
or
explanation
as
to
why the
Joliet’s
2006
Land
Application
Permit
was
the
first
permit
that
included
a
radium
limitation,
despite
the
fact
that IEPA
and
the
Illinois
Emergency
Management
Agency
(“IEMA”)
signed
the
Memorandum
of
Agreement
(“MOA”)
that
Respondent
relies
heavily
upon
for
authority
as
to
the
basis
for
the
radium
limit
of
0.1
picoCuries
per
gram
(pCi/g).
(See
Respondent’s
Reply
Brief,
at
3).
Nowhere,
however,
does
Respondent
cite
to
any
facts
in
the record
to
support
its
assertion.
To
the contrary,
the
record
reflects
that
the
level
of
radium
in
Joliet’s
bio-solids
was
most
likely
the
same during
the
period
before
Joliet
began
its
water
treatment
program
as
they
were
after
such treatment
began.
(Hearing
Testimony
dated
January
13,
2009,
of
D.
Duffield,
15:10-
24,
Exhibit
4,
at
3).
The
simple
reason
for
that
is
that
essentially
the
same
water
from
the
public
-3-
water
supply
would
have
been
used
by
the
populace
before
the
radium
was
removed
from
drinking
water
as
after;
the
only
difference
was
that
before
the
radium
was
removed
by
treatment,
such
radium
was passed
back
through
the
system
after
the
water
was
used
and
returned
via
the
sewer
system (eventually
to
wind
up
in
the
sludge),
and
afterwards,
the
radium
was
removed
first
and
added directly
to
the
sludge
without
being
sent
to
users
first.
(Jd.)
As
Mr.
Duffield
testified,
“The
radium
removed
by
the
water
supply
treatment
could
also
be
discharged
to
the
sanitary
sewer.
The
total
amount
of
radium
pumped
from
the
deep
wells
would
reach
the
wastewater
treatment
plant
unchanged
using
either
approach.”
(Id.)
Respondent’s
unfounded
and
unsupported
inference
is
also
directly
at
odds
with
statements
in
the
Clark
Dietz
report,
which
is
a
part
of
the
record.
The
Clark
Dietz
report
states
that
“[t]he
proposed
water
treatment
technology
is
not
expected
to
increase
the
amount
of radium
in
the
sludge.”
(R86).
Further,
the
report
states,
“[s]ince
the
mass
loading
of
radium
is
not
expected
to
change,
the
quantity
of
radium in
the
waste
sludge
from
the
plant
is
not
expected
to
change
from
the
current
levels.
Therefore,
the
amount
of
radium
currently
being
applied
with
the
biosolids
to
farm
fields
will
not
be
increased
due
to
the
installation
of
new
water
treatment
technology.”
(Id.)
In
this
same
subsection
is another
related,
unsupported
assertion
that
the
sludge
issue
first
arose
with
Joliet’s
decision
to begin
treatment
to
remove
the
radium
from
its
drinking
water
in
the
early 2000s.
Respondent
provides
no
cite
to
the
record
for
this
statement,
and
it
is
simply
wrong. While
the
record
does
not
give
an
exact
date,
the
Clark
Dietz
Report
dated
August
2004
refers
to
Joliet
having
under
consideration
or
evaluating
processes
to
treat
water.
(R286).
Mr.
Duffield’s
letter
to
Mr.
Al
Keller
of
IEPA
dated
2/28/05
stated
that
Joliet
has
raised
the
issue
because it
is
in
the
process
of
selecting
treatment
options.
(Ri
05). Thus,
Joliet
did
not
begin
-4-
water
treatment
in
the
early
2000s,
but
rather
later,
after
2005, and
the
treatment
did
not
impact
the
radium
concentration
in
the
sludge.
Again,
Respondent’s
attempt
to
create
a
believable
explanation
for
why
the
radium
level
limitation
for land
treatment
was
added
in
the
2006
Permit
falls
short
of
the
mark.
Respondent
makes
the
remarkable,
and unsupported,
statement
that
the
MOA
“has
been
applicable
to
the
Petitioner’s
activities
since
1984,”
but
that
“the
Illinois
EPA’s
initial
understanding
was
that
the
regulation
of
radium
was
outside
the
Agency’s
jurisdiction.”
(Respondent’s
Reply
Brief,
at
3).
Respondent
contends
that
it
was
U.S.
EPA’s
final
determination
on
drinking
water
standards
on
December
7,
2000,
which
caused
IEPA
to
“revisit
this
issue
beginning
immediately
thereafter.
As
a
result
of
reassessing
the issue,
the Illinois
EPA
included
radium
limits
in
the
Petitioner’s
2006
permit.”
(Id.) Respondent
provides
no
citation
to
the
record
as
support
for
any
of
these
statements.
In
sum, Respondent’s
tortured
explanation
of
why
the
1984
MOA
between
IEPA
and
IEMA was
never
used
as
authority
for
imposing
a
radium
restriction
on
Joliet’s
Land
Application
Permit
before
2006
is
unsupported
by
citations
to
the
record,
not
to
mention
being
contrary
to
the
unrebutted
evidence
in
the
record
in
any
case.
Therefore,
the
Board
should
specifically
strike
the
entire
subsection
of
Respondent’s
Reply
Brief
entitled
“Application
of
the
MOA,”
which
appears
on
pages
2-3
of
the
Reply
Brief.
III.
Respondent
Asserts
That
IEMA
Has
Made
Determinations
On
the
Health
Effects
and Bioaccumulative
Properties
of
Radium
But
Gives
No
Citations
to
the
Record
Finally,
Respondent
also
makes
the
unsupported
assertion
that “IEMA’s
department
of
nuclear
safety
has
made
determinations
on
the
heath
effects
and
bioaccumulative
properties
of
radium.”
(Respondent’s
Reply
Brief,
at
5).
This
statement,
which
appears
in
the
subsection
of
Respondent’s
Reply
Brief
entitled
“Impermissible
Rulemaking,”
should
also
be
stricken.
There
-5-
is
no
information
in
the
record
regarding
IEMA’s
research
into
radium
issues
or
related
determinations
that
would
have
any
bearing
on
IEPA’s
decision
to
deny its
requested
permit
modification.
The
lack
of
citations
to
the
record
to
support
this
statement
is
a
fatal
flaw
that
compels
striking
it
from
Respondent’s
Reply
Brief.
CONCLUSION
Respondent’s
Reply
Brief
is
rife
with
drive-by
assertions
of
fact
that
have
no
basis
of
support in
the
record,
nor
does
Respondent
attempt
to
provide
any
citations
to support
such
assertions,
in
clear
violation
of the
proper
standard
for
arguing
before
the
Board.
All
such
unsupported
statements,
as
identified
above, should
therefore
be
stricken.
Unlike
in
Waste
Management,
where
the
Board
granted
the
movant’s
motion
to
strike,
but
declined
to
specify
on
a
line-by-line
basis
what
specific
portions
of
the
brief
should
be
stricken
due
to
movant’s
failure
to
identify
specific
objectionable
portions
of the
brief
at issue,
here,
Petitioner
has
identified
with particularity
those
portions
to
be
excised.
Thus,
the
specific
portions
of
Respondent’s
Reply
Brief
that
have
been
identified
above
should
be
deemed
stricken,
and
given
no
weight
by the
Board
in
its
deliberations
as
to the
instant
permit
appeal.
-6-
WHEREFORE,
for
all
of
the
reasons
set
forth
above,
Petitioner,
The
City
of
Joliet,
respectfully
requests
that
the
Board
grant
its
Motion
to
Strike,
and
grant
such
further
relief
as
the
Board
deems
necessary
and
appropriate.
Dated:
March
10,
2009
Roy
M.
Harsch,
Esq.
Lawrence
W.
Falbe,
Esq.
Yesenia
Villasenor-Rodriguez,
Esq.
Drinker
Biddle
&
Reath
LLP
• 191
North
Wacker
Drive
-
Suite
3700
Chicago,
IL
60606-1698
(312)
569-1000
(312)
569-3441
(Facsimile)
Respectfully
submitted,
THE
-7-
CERTIFICATE
OF
SERVICE
I, the
undersigned,
certify that
I have
served
the
attached
Joliet’s
Waiver
of Statutory
Decision
Deadline
and
Petitioner’s
Motion
to Strike
Certain
Statements
in
Respondent’s
Brief
That
Are
Not
Supported
By
Citations
To
The
Record,
by
First
Class
Mail,
postage
pre
paid
on
Tuesday,
March
10,
2009.
See
Attached
List.
Ye
nia
Villasenor-Rodriguez
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Gerald
Karr
Office
of
the
Attorney
General
of
Illinois
Senior
Assistant
Attorney
General
Environmental
Bureau
69
West
Washington
—
Suite
1800
Chicago,
IL
60602
John
T.
Therriault
Illinois
Pollution
Control
Board
James
R.
Thompson
Center
100
W.
Randolph
Street
—
Suite
11-500
Chicago,
IL
60601
Bradley
P.
Halloran
Hearing
Officer
Illinois
Pollution
Control
Board
James
R.
Thompson
Center
100W.
Randolph
Street—
Suite
11-500
Chicago,
IL
60601
Illinois
Environmental
Protection
Agency
Division
of
Legal
Counsel
1021
North
Grand
Avenue
East
P.O.
Box
19276
Springfield,
IL
62794-9276
CHO1/
25312108.1
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